Hussey v. The State Of Ga.

• Decision Date: 30 September 1882
• Citation: 69 Ga. 54
• Court: Georgia Supreme Court
• Parties: Hussey. vs. The State of Georgia.

69 Ga. 54

Hussey. vs. The State of Georgia.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Criminal Law. Before Judge TOMPKINS. Chatham Superior Court. June Term, 1882.

Hussey was presented by the grand jury for keeping open a tippling house on Sunday. The presentment charged " that the said George W. Hussey, in the county of Chatham, state of Georgia, aforesaid, on the twenty-fifth day of December, 1881, did unlawfully keep an open tippling house on the Sabbath day." Defendant moved to quash the presentment, because the location of the alleged tippling house was not stated. The motion was overruled. The evidence showed, in brief, the following facts: Defendant kept a restaurant and bar, and had a number of boarders who took their meals regularly at the restaurant. On the ground floor of the building there were two rooms; the first one having an office, cigar stand and bar room in it, and the rear room being usedas a restaurant. The front entrance was closed by swinging doors, which yielded to pressure. On entering, the office and cigar-stand were on one side, the bar on the other. Between the two was an open way through which people passed into the restaurant, the other entrance to which was an alley. On the Sunday in question, the bar was closed by having canvas stretched from the ceiling to the floor, hiding the bar and the liquors and having upon it the announcement, " Bar closed." People, however, passed through the front room to the restaurant, and were there served with liquors by waiters, they having gone there for that purpose alone, and not for the purpose of eating. The liquor was handed into the restaurant through a window between it and the bar, and behind the curtain.

The jury found the defendant guilty, and recommended him to the extreme clemency of the court. The presiding judge sentenced him to pay $300.00 fine and costs, or to be imprisoned for six months. He moved for a trial on the following, among other grounds:

(1.) Because the court refused to quash the presentment.

(2.) Because the court admitted evidence to show that liquor was furnished on the day charged to people in the dining room or restaurant, the objection being that this was irrelevant.

(3.) Because the court charged as follows: "The issue in this case is made upon a special presentment by the grand jury, and not upon a true bill preferred by any prosecutor. It is not a case of one man against another, but of the state of Georgia against the accused, which case the grand jury have seen proper to make against the defendant."

(4.) Because the court charged as follows: " If the house is shown by the evidence to be a tippling house, and was, on the Sunday alleged in the indictment, kept in such condition that people could come in or go out freely, so that it afforded free ingress and egress to all who chose to go in and come out, it did not matter whether the doors were closed or kept open."

(5.) Because the court charged as follows: "Selling liquor on Sunday, or at any time, is not the gravamen of the charge. But the court let the evidence of the sale of liquor go in, in order that you might take that with the other evidence to ascertain if the place alleged to have been opened on Sunday, was, or was not, a tippling house."

(6.) Because the court charged as follows: " The offence is a misdemeanor, and the law does not provide for any recommendation to mercy being made by the jury, as it does in felonies; but I do not preclude you from making the recommendation, if you see proper to do so, though it is unnecessary."

(7.) Because after the jury had made such recommendation, the court sentenced defendant to pay a fine of $300.00 or undergo six months imprisonment.

The motion was overruled, and defendant excepted.

S. Yates Levy; J. R. Saussy, for plaintiff in error.

W. G. Charlton, solicitor general, for the state.

Jackson, Chief Justice.

The defendant was indicted for, and found guilty of. the offence of keeping open a tippling house on the Sab bath day. His motion for a new trial having been denied by the court below, the case is brought here on errors assigned on all the grounds of the motion.

1. There is no room, at all, for doubt as to his guilt. It is the strongest case, of the sort, ever brought to this court within our knowledge and recollection, and no matter how many trials he might have, the facts and law absolutely demand the verdict of guilty, and such would be unless both facts and law were outraged by the juryand their oaths violated. He occupied a floor, in the. front room of which he had his office on one side and bar on the other, and the rear room of which was a restaurant with an open door between them. In the rear, or restaurant room, the liquors were served to a number of gentlemen at one time during that Sunday, and to another by himself later in the same day. Neither wanted, or got, a mouthful to eat; all went for drinks, and got them, some whisky, others beer. They did...